PROMOD CHANDRA DEB AND OTHERS versus THE STATE OF ORISSA AND OTHERS

--.

=I • •

1961

Bidi, Bidi ltavtt and Tobacco A1 erchants' .Association v. The State of Bomb•y

G•jendr apndkar J.

1961

October ltl

(1) $.C.R.

•

SUPREME COURT REPORTS

405

in such a case may be to make a comprehensive re ference of the di8pute to the competent industrial tribunal and invite the tribunal to make a proper award in that behalf. We are, therefore, inclined to take the view that cls.3 to 7 which form an integral scheme are outside the purview of the powers con ferred on the respondent by s. 5 of the Act and must therefore be declared to be ultra vires. It is common-ground that these clauses are severable from els. l and 2 and that their invalidity does not affect the validity of the said two clauRes.

In the result Civil Appeals Nos. 415 and 417 are allowed and Civil Appeals Nos. 416 and 418 are dismissed. Respondent to pay the costs of the petitioners in Civil Appeals Nos. 415 and 417. One set of hearing costs.

O. A. Nos. 415, 417 allowed. O. A. Nos. 416, 418 dismissed .

PROMOD CHANDRA DEB AND OTHERS v. THE STATE OF ORISSA AND OTHERS (B. P. SINHA, c. J., s. IC DAS, A. K. SARKAR N. RAJAGOPALA AYYANGAR and J. l{. J\IuDHOLK~R, JJ.)

Khor Posh Grant-Maintenance allowance granted by Ex Ruler of State-Merger of State with the Dominion of lndia Abrogation of grant by executive act.ion-if an act of State Oonstitutiona/ Validity-Constitution of India, Arts. 14, 19(1) (/), 31-Extra Provincial J,,risdiction Act, 1947(47 of 1947) ss. 3, 4, 5-Administration of Ori.,a States Order, 1948, Para'. 4(b)-8tates' M.rger (Governors' Pmvinces) Order, 1949, ss. 3. 4,-Government of India Act, 1935 (26 Geo. 5, ch. 2) s. 299 ( l).

The petitioners, who were holders of Khor Posh grants from the Rulers of Talcher, Bamra and Kalahandi before these states merged with the Dominion of India, chall"n.~ed the constitutional validity of certain orders passed by the State

l'r•moi Chatlr• Deb v. Tiu Slat1 of Oris so

406 SUPREME COURT REroRTS (1962] SUPP.

of Orissa and the Union of India annulling those grants which , the Petitioners claimed were ba~ed on the law and custom prevailing in these states relating to maintenance of the junior members of the Ruling family. The grant in controversy in Petition No. 79 of 1957, made by the Ruler ofTalcher under Order 31 of the Rules and Regulations of the State ofTalcher, 1937, originally of land but converted in 1944 into money grant, was regularly paid till April 1949. The grant in Petition No. 167 of 1958, made by the Ruler of Bainra prior to January I, 1948, was annulled on June 8, 1949, by the Government of Orissa as the delegate of the Governmcn t of India under. s. 4 of the Extra Provincial Jurisdiction Act 1947. The petitioner in Petition 168 of 1958 was the same as in the previous petition. He was granted an increased allowance by the Ruler of Bamra on December 8, 1947. The grant was recognised on June 11, 1949, but paid at a reduced rate from April I, 1948, to July 1, 1957, and was annulled by a state· ment made on June 29, 1957, hy tho Chief .Minister of Orissa in Legislature. The allowance in favour of the first petitionr.r in Petition No. 4 of I 9'1!J; tho widow of the late Maharaj a of Kalahandi, fixed by the Political Department of tlte Govern ment of India in l~l39, and the a11owance granted to the second petitioner by the Ruler, were paid till they were annulled by the aforesaid statement of the Chief Minister of 01 issa. By the Merger Agreements signed by the Rulers on or after December 14, 1947, Sovereignty over these States vested in the Dominion of India before January I, 1948, and in exercise of its powers under s. 3(2) of the Extra Provincial Jurisdiction Act, 1947, which came into effect on December 24, 1949, the Central Government delegated its powers to the Government of Orissa to administtr the States. On January I, 1948, the Government of Orissa in exercise of its powers under s. 4 of that Act made an order called the Administration of Orissa States Order, 1948, para. 4(b) of which provided, inter alia, that all prior Jaws, which included Rules, Regulations, byc laws and orders, whether based on custom or u•age, would continue in force until altered or amended by an order under the Extra Provincial Jurisdiccion Act, 1947. Bys. 3 of the (Governors' Provinces) Order, 1949, which States' Merger caine into cft'ect on August I, 1949, these States became parts of the Province of Orissa. Section 4 of the Order.provided that all laws Jn force in a merged State before that day includ· ing orders made under ss. 3 or 4 of the Extra Provincial Juris diction Act, 1947, would continue in force until repcalr.d modified or amended by a competent legislature or other com· pctent authority. The case of the petitioners was that by these provisions the grants were recognised by the new sovereign and their abrOjfoltion by executive action aniounted to Infringement

• •

1961

••

Promod Cltandta D1b

Tl.1 Stall of Orissa

(I) S.C.R.

SUPREME COURT REPORTS 407

respondents

of fundamental rights guaranteed by, Arts. 14, 19(l)(f) '!nd 31' of tbe Constitution A preliminary objection \vas taken on behalf of the in the fir•t two Petitions that the grants in questipn having been annulled prior to the Constitu .. tion, no writs could issue thereunder and it was urged, that in any view of the. matter, the orders annullirig the grants 11-mounted to acts of state and their legality could not be canvassed in a Municipal Court.

'"

Held, that the prelin,>ina1y objection 1.ad no substance and must faiJ. Since the grants at the time they werC annul to be grants of land and been converted to led had ctased money allo~ances, payabJe, periodically at regular interyals, every perioSic deprivation gave the petitioners the right to approach the court. and, it was not 11ntil 1957 that the pro tracted correspondence betl\·een the parties for the rcvisiOn of

'- ,the impugned Orders came to an end.

'

forfign

the-. power .to_

·The expression. 'act" of state! means

the arqui!dtion .. Pf sovrreigllty hy a state ,o.Jer. ,territor·y by cofiquest, treaty, c~ssion or otl,erv . ..ise. That act may t'ake place on a parlicular date or by a gradual process.but sovereign power,, incluaing the _right to legislate for and adniinistef the ac~uire,d territory, may be acquired ~before che merger. No Municipal Couft has, however, judge "the -propriety or legality of such an act 'relating either t6"public or private righta nor can it enforce obe.dience to ordinary principles of Inter· national la·.v-·relating to rights of private property which a new !"ov&"eign' is presumed to res\Ject: Iudl~idual citizr:ns canµot enforce such rights even .thdugh they may be pNtected by .the treaty since'they are no parties to the 5tipulations. It is oriJ.y when the new sovereign recognhes the Municipal Courts that they can have the po,ver and jurisdiction to investigate and rights as it chooses to i:_ecognise either by ascertain only such legislatipn or agreement or other\yjse. RCcognition .may, be express_ or impped from it.; ,dcailng with those 'rights. Such the jurisdiction of recognition, however, is al mattel' '"ithin the Municipal Cour(s, but the onus or proving it IUJ.!St be on the claimant.

·

Secretary of State of India v.

·Mamachee Boye Sahaba, (1859) M.T.A. 476, Cook v. Sir James Gordon Sprigg; [1899) A.O. 572, Secretary of Stale for India v. Bai //ajbai, tJ915) L.R. 42 I.A. 229, Vajesingjj Joravtsrsingji v. Secretaty of State Jo• Tndia in Council, (1924) L.R. '51 I.A. 357, Datlatraya Krishna Rao Kane v. Seci·,ta1y of .~tqte for India, (1930) L.R. 57 I.A. 318, Secretary of State v. s.,rilar.Ru.<tarn. Khan, (191'!) L.R. 68 I.A. 109, State of Saurashtra ,v.;Mfnqf Haji lsmail Haji, [1960] 1 S.C.R. 537 andJagannathAgai~a v, Stat. of Oriasa, [1962] 1 S.C.R. 205, referred to.

( / ' '

"' """"'

' .

19~1

~-···---

Promod Chandra Deb

·-¥• _.,,; • '- z" • Thi State oJOri.1s~

'

408 SUPRE~m COURT REPORTS [1962] SUPP.

that Order 31

Judged in the

light of these principles, there could be no doubt . of the Rules and Regulations of the State of Talcher, 1937, had the effect of law, having been continued in force by sub-para. (b) of Para. 4 of the adminis tration of · Orissa ·States Order, 19~8. in the absence of any legislation to the contrary under the Extra Provincial Jurisdic tion Act, 1947.- The said Rules and Regulations were existing ··Jaw within the meaning of Art. 327 of the constitution. It the former Ruler

was wholly immaterial whether the grant by waS a legislative or an executive act.

. Madharao Phalke v. The State of Madhya Bharat, [1961] I S.C.R. 957, Thakur Amar Singhji v. State of Rajasthan, (1955] 2 S.C.R. 303 and M/s. Dalmia Dadri Cement Go. v. The . Commissioner of Income-tax, (1959] S.C.R. 729, relied. on.

The wide

(4) of the Order of 1948, read with the Explanation, left no manner . of doubt that the new sovereign by that Order had recognised

language of sub-par.

(b) of para.

the Khorposh grant made to the petitioner.

, It was not correct to say that the impugned order annul ling the grant coald be sustained under"· 3(1) and (5) of the Extra Provincial Jurisdiction Act, 1947. Section 3(1),. properly con!trued, could not overrides. 4 of the Act and an order thereunder by a competent authority could be super made seded only by another under the section itself. Section 5 of the Act could not be so construed as to authorise the abroga force by s. 4 or an order passed tio11; of a ]a\v continued in . thereunder. The entire Act must be read harmoniously so as It must, therefore, to give effect to each one of its provisions. be held the annulment by executive. action was not · justified.

that

·

-

•

It was -not, therefore, necessary for disposing Of this matter to consider whether· the petitioner wa• entitled to the protection of s. 299(1) of the Government of India Act, 1935.

0

Johnstone_v. Pedlar, (19_21) L:R. 2 A.C. 262, considered. Since the order impugned by Petition No. -167 of 1953 was made in terms qf s. 4 of the Extra Provincial Jurisdiction Act, 1947, it had the effect of law, and was not open to investigation by this Court.

· The right of the petitioner in Petition No. 16B. of 1958, having been recognised on June 11, 1949, in modification of the implemented, it could not be grant by 'the Ex-Ruler and abrogated by a mere executive fiat.

-

.The orders of annulment in Petition 4of1939 must also

. for the same reasons be held to be unjustified.

(l) S.O.R.

SUPREME COURT REPORTS 409

Per Sarkar and Mudholkar, JJ .-Section 299( I) of the Government of India Act 1935 could be of no help to the grantee from an Ex-Ruler u;,less his right had beed recognised by the new sovereign so a. to enable him to establish the same in its municipal courts. That section could only protect such rights as the new citizen had at the moment of his becoming a citizen of the Dominion of India. It did neither enlarge his rii:hts nor cure any infirmity in them.

1961

Promod Chaodra DdJ Y, Th S1a11 of llrissa

State of Gujarat v. J amadar M akomed Abdulla [ 1962]

3 S.C.R. 970,

referred to.

ORIGINAL JuruSDIOTION: Petitions Nos. 79 of

1~57, 167 and 168 of 1958 and 4 of 1959.

Petition under Art. 32 of the Constitution of

India for enforcement of Fundamental Rights.

A. V. Viswanatha Sastri and K.R. Ohoudhri, for

the petitioner (In Petn. No. 79 of 1957).

Purushottam Trilcamdas and R. Patnaik, for the Petitioners (In Petns. Nos. 167 of 58 and 4 of 59).

N. O. Oltatterjee and R. Patnaik, for the peti

tioner (In Petn. No. 168 of 1958).

0. K. Daphtary, Solicitor-General of India, B. R. L. Iyengar and T. M. Sen, for the respondents.

1961. October 16. The Judgment of Sinha, C. J., Das and Ayyangar, JJ., was delivered by Sinha, C.J., and the Judgment of Sarkar and Mudholkar, JJ., was delivered by Mudholkar, J.

SINHA, C. J.-The Petitioners in these Writ Petitions, under Art. 32 of the Constitution, comp lain of interference with their rights under the seve ral Khor Posh grants, and pray for writs of certiorari or mandamus and further orders or directions to the respondents for the enforcement of their alleged rights. In Writ Petition No. 79 of 1957, the first respondent is the State of Orissa, and the Union of India is the second respondent. In all the other Writ Petitions, the State of Oris11a is the sole r.is pondent. As rr.ost of the questions of law relating to the interpretation of the Constitution, or other

Sinlra C. J.

JHl

Pr"""'4 C!zan4,• D16

•• 'IL Stoll of Orim 8inM c. J.

410 SUPREME COURT REPORTS [1962] SUPP.

laws hereinafter to bo referred to, are common, the C&Scs have been heard together. But in order to appreciate the points arising in these cases, it is necessary to state the facts of each case separately.

I. Writ Petition No. 79 of 1957.

In Writ Petition 79 of rn57, the petitioner is the younger brother of the present Itaja of Talcher, which was an indopendent sovereign State before its merger. It was later incorporated in the State of Orissa. The Talcher State was a sovereign State of the Rajabahadur ofTalcher, under the paramount cy of the British Govcmment, before India attained Independence. As sueh a sovereign, tha Rajah had a.bsolut11 powers of disposal of the pro perties comprised in the State. The RueccsRion to the Rulership of the State is governed by the Mitak shara law, accorrling to the rule of lineal primogeni ture. Tho petitioner is a citizen of India am] is the only youngn brother of the present Raja of Tak-her. The petitioner's father, the previous Ruler of Tal cher, died in 1945 and was succeeded by the peti tioner's cider brother, tho present Raja of Talcher, According long· established custom of the State, as alRo according to the Hindu Law of lineal primogeniture, the junior members of the family of the l{ulers, for the time being, were entitled to and were provided with suitable main tenance, either land or in money, to enable them to maintain themselves in accordance with their the Ruler's family. The status as members of grants of land, or its equivalent in money, or partly in ,la.n.d and partly in money, used t'> be called Khanja or Khor posh grants, and the grantees wero known as Khanjadars or Khorposhdars. The nature and conditions of such grants have been laid down in Order 31 of the Rules, Regulations and Privileges of Khanjadars and Khorposhd.ara. Those "rules, regula tions of Ta.lcher etc. ( 1937)" state the law of the State. In acoordance with the law aforesaid, the Khorposh

to immemorial and

....

(1) s.c.R. SUPREME COURT REPORTS

411

grants made by the Ruler, for the time being, became the absolute private property of the grantee, being a male or a female member of the family of the grantor.

1961

Promod Chandra l>tb •• TMStat1 ofOrissa

Sin/wJ C. J,

The petitioner was born in 1903, and in the same year the petitioner's father, who was then Ruler of the State of Talcher, made a grant in perpe· tuity to the petitioner of 5 villages specified in the Schedule to the petition. The said grant conveyed to the petitioner full proprietary rights in the villages aforesaid. By an order, dated Mach 31, 1912, the Ruler aforesaid passed an order to the effect that the income of the 5 villages granted to the peti tioner, as aforesaid, be collected by the State Offi cipJs and deposited in the St1tte Treasury, and the petitioner should be paid in cash the equivalent of the income from the villages aforesaid, amoun ting to Rs. 5926 odd. By a subsequent order, dated September 8, 1929, the Ruler aforesaid directed the Settlement Officer, who was in charge of making the record• up to date, to keep the aforesaid grant yielding a cash income of Rs. 5926 odd intact, to be enjoyed by the petitioner "in perpetuity under hereditary rights". The Ruler of the State, aft11r making the necesaary enquiries, directed, by his Order dated March 16, 1944, that the petitioner should be paid Rs. 6200 a year, as & cash allowance out of the State Treasury in lieu of the income from the villages granted to the petitioner, as afore said. Since then the petitioner was being paid regularly the allowance at the rate of Rs. 500 per month, till April 1949.

Going a little backwards,

it is necessary the narrative of events by sta

that in August 1947,

to complete the present Raja of ting Ta.lcher, the petitioner's elder brother, entered into an agreement with the Dominion of India , after its formation after the Independence .Act of 1947, and e:11:ecuted an Instrument of Accession,

1~1

l'romrxl Clutnd<a Dtb v. Tlit Stak of Orissa

SinlM C. J.

412 SUPREME COURT REPORTS [1962] SUPP.

it appears

which was in tho form as in Appen dix VIII at page l6!l of the Whiti> Pap~r on Indian States. Another agreement, in form appearing in Appendix IX at pngo 173 of the 'Vhitl) paper, was also entere<l into between the Ruler of Talcher and the Dominion of India. On December 14, 1947, o.n agreemC'nt, called the 'Merger Agreement', in the same form as Appendix XI at page 178 of the Whito Paper, was entered into between the Gover nor-General of India and the Raja of Talcher. The terms and effect of these transactions will have to be examined in detail l:iter. On Jannary I, l!l48, the State of Talchor mNged in the Dominion of India in accordance with the Merger Agreement aforesaid. Tho petitioner claims that the Khorposh grant made to him, as aforesaid, was fully and unequivocally recognized by tho State and that even without such recognition his rights before the merger of the State of Talch!'r in Orissa r<>maincd intact., and neither the Central Government nor tho State Government could question or ignore those rights. As the petiiioner did not receive his Khorposh allowance due for the month of April, l!l4!l ho entered into corresponde Io answer nce with the Government of Orissa. he received a letter, dated l\lay 26, I !l49, from the Sub-Di\·isional i\Iagistrate of Talcher informing him that the payment of allowanco in question could not be made until further instruction• were received from the Government. Aa a n•sult of further correspondent between the pctitil)ner and the Governmont of Orissa, the petitioner received a letter, on June 22, l 9!!l, to the following effect:

"With reference to your letter No. Nil dated 7th June, I !l4!l, on the subject men tioned above, I am directed to say that as you have extensive landed property and are well off in Jifo, Government of India have not allowed any monthly cash allowance. The decision of the Government of India i$

(i) S.C.R.

SUPREME COURT REPORTS

413

final in this matter and cannot be reconsider ed."

It is this order of the Government which the petitioner challenges as invalid and interfering with his property rights. After entering into further correspondence with the Government of India, the petitioner receieved on September 7, 1956, a copy of the letter dated March 26, l 955, to the follow ing effect:

IHI

Promcd Chandra D& v. The State of Oria.sa

Sinha C. J,

"The Government of India are advised that the alleged grant of maintenance allow ance to you by the Ruler of Talcher was never recognized by the Govt. of India or the State Govt. of Orissa. After. the merger therefore no claim for payment of the said allowance can be enforced against either the State Govt. of Orissa or the Central Govt. The Govt. of India are further advised that even if, according to the law applicable to the members of the ruling Family of Talcher you had a right to be maintained, that was rights against the Ruler of Talcher which is legally enforceable against either the not Govt. of Orissa or the Central Govt. who have not inherited or undertaken Bny obliga tion in the behalf.

As regards your contention ba~ed on the provisions of Articles 2 and 4 of the Merger Agreement signed by the Ruler of Talcher I am directed to say that the Govt. of Indi~ do not consider that these have the effect of placing an obligation on the Government to continue your allowance."

The correctness and validity of the statements of fact and law contained in the letter aforesaid of the Government of India is challenged by this petition on the grounds that that Government's order aforesaid amount to an infringement of

INl

Pra<Md 0""1tJra Deb •• Tilt Bt.u af Ori= 8i""4 c. J.

414 StJPREME lOURT REPORTS [1962] StJPP.

the petitioner's fundamental rights under Arts. 19( I )(f) and 31 of the Constitution and are also discriminatory, thus violating Art. 14 of the Cons titution inasmuch as tho other Klwrposh grantees have been allowed to continue enjoying their similar rights. It was on these allegations that the petitioner moved this Court and. obtained the Rule,

II. Writ Petition No. 161of1958.

The petitioner in this caae is

the younger brother of the Rajll of what was previously known as the State of Bamra, one of the native States !n Orissn. The Ruler of Bamra possessed and exer cised absolute rights-legislative, executive and judicial-in his territory, subject to tho paramoun tcy of the British Government. The Ruler of Bamra also, like tho other ruler similary situated, acceded to the Dominion of India by an Instru ment of Accession executed between him and the Governor-General of India on or about the 15th of August, 1947, in terms similar to the form appearing in Appendix VII of the White Paper, at page 165. There arc similar allegations, as in the previous ca.se, about the law and custom govern ing the grant of /(horposh to the members of tho Ruling Family. Iu accordance with tho law aforesaid and in exercise of his sovereign powrre, the Ruler made tho following 4 grants in favour of the peti tioner.

"l. Land Revenue hereditary grant of Re. 10,000 per annum out of the Revenue income of the village Balanda and 24 others in llamra State granted by the Ruler on 24-3-47.

2. Land Revenue hereditary kharposh Mafi grant of Rii. 2,400 per year out of the income of village Nenei and 6 othf'rs granted by the ruler on 15-9-45.

• (1) S.C.R. SUPREME COURT REPORTS

415

3. Forest grant of Panguli and Prabha suni reserve reclaiming 1500 for acres granted by Ruler on 27th December, 1947.

forests

1961

••

PromoJ Chandra lhb

Thi Stat1 of Orissa

Sinha C. J.

4. Tank at Deogarh granted by Ruler on 22-9-47. All these properties have been duly recorded in Revenue registers."

in relation

the grants

to the governance

After aforesaid had been made in favour of the petitioner, who is the only surviv ing younger brother of the Ruler, the latter execu ted, on- the December 30,1947, the Agreement of Merger by which he transferred to the Dominion Government authority, jurisdiction and power for and of Bamra State and also agreed to transfer the administra tion of the State on January 1, 1948. On June 8, 1949, the Government of Orissa, purporting to act in exercise of its powers under s. 4 of the Extra Provincial Jurisdiction Act (XLVII of 1947), read with Notification dated March 23, 1948, issued directions to the Bffect that the commitments, specified in the Schedule to the Notification, made by the Ruler of Bamra were not reasonable and bonafide in the opinion of the Provincial Govern: ment and were declared null and void and not binding on them, and shall stand annulled as from the date of the said commitments and that no Court shall have jurisdiction to call into question the validity of the Order. The Schedule to the Notification aforeseid also made reference to the grants made in favour of the petitioner. Then the petition goes to make allegations &a to why the petitioner was discriminated against on grounds of political bias. The petitioner also challenged the authority of the Government of Orissa, or of Central Government, to annul the said grants, and characterised the annulment as wholly void. As the petitioner's memorial and petition request ing th11 Orissa Government"to annual their Order

'-

1951

Prornt>d ~"J D1b ~. Tlw S1aJ1 of Orissa

Sinha C, J.

416 stJl'R:F:ME COURT R~PORTS (1962] SUPP.

•

of June 8, 1949, aforesaid had proved unavailing, as would appear from th11 Government'• letter dated Jmw 26, 1957, tho petitioner had no option left but to move this Court. The Orders afore said of the Government are challenged as null and void and ultm i-ires the powers of the Govern ment, as violative of Arts. I9 and 3I of the Consti tution.

III. Writ Petition 168of1958.

The petitioner in this case is the same as the petitioner in the Writ Petition 167 of 1958. After making allegations similar to those in the previous petition, he goes on to state that the Ruler of the Bamra State made the following Order on Decem ber 8, 1947.

"Bamra Darbar Order

As my brother Barakumar Pratap Ganga Deb is going to marry soon and as tho present maintenance grant will be insufficient to maintain himself and his family befitting the present main his status and position, tenance grant of Rs. 600 p. m. is increased to Rs. IOOO (one thousand) per month with effect from the Ist of December I947. 8th Dec., 1947.

Sd-B.C. Tribhuban Deb.

Raja & Ruler, Bamra Statf!."

Tho petitioner goes on to state that, not with standing the protest of the petitioner, the increased a.mount of maintenance at Rs. 1000 per month, as 11ranted· by the Ruler, as aforesaid, was reduced by Mr. D. V. Rege, the Adviser to the OriBsa State, by his letter dated June I I, 1949 to the following effect:-

"Dear Bara Kumar Sahib,

With the

approval of Government of India your allowance has been increased

1961

"•""" Chandr• Dtl v. Tiu State-nfOrissa

Sinha r:. J.

(1) S.C.R. SUPREME COURT REPORTS

417

from Rs. 7200 to Rs. 9600 per annum from 1·4-1948.

Your sincerely,

Sd. D. V. Rege"

to

of

the

amount

reduced

paid till

to July

This maintenance at the rate of Rs. 800 per month continued petitioner from April be 1, 1948 the passing of the Budget for 1957-58, during the discussion on the Orissa Appropriation Bill (II of 1957) on June 29, 1957, the then ChiefMinister of Orissa, Dr. Hare Krishna Mahtab, suddenly, for political reasons, made a statement in the Assembly to the following effect:

I, 1957. But after

"Government have decided that on princi• pies and on grounds of expediency all allow ances to relatives of the Rulers should be annulled with effect from 1st July, 1957, and the fact should be communicated the Government of India, subject to the following conditions:-

to

( 1) The existing allowances should be continued in respect of widowed Rajmatas and other widows subject to a maximum limit of Rs. 500 per month.

(2) If, ~s a result of annulment of these allowances, any hardship is caused to anybody, he or she may represent to Government for consideration of his or her case and Govern ment after proper enquiry about the actual conditions and income of the representationist and at"ter being satisfied about the genuineness of the grievance, may, in suitable cases, grant allowances to anybody upto a maximum limit of Rs. 500 p.m."

The result of this statement was that the petition1>r's allowance was annulled. The petitioner's memorials and petitions to the State Government and to the

•

418 SUPREME COURT REPORTS [1962] SUPP.

1961

ProtMd ~ra Deb v. Tiu Stott ofOrissa

SmAaC.J.

Centeral Government authorities proved fruitless; hence the writ petition in respect of the annulment aforesaid.

IV. Writ Petition .\'n. 4 of 19.59.

The petitioners in this case are the mother and younger brother of the present l\Iaharaja· of tho State of Kalahandi, previously known as the State of Kalabandi, one of the native Statos in Orissa. After the death of the late l\faharnja Braja l\Iohan Deo of Kalahandi in 1 fl3!J at the age of 43, the maintenance allowance of Rs. 1200 per month was fixed for the first petitioner by the Political Depart· ment of the Government of India. She continued to get the allowance even after the merger of the State of Kalahandi with the Province of Orissa. The petitioner No. 2, as the younger brother of the Ruler of Kalahandi and in accordance with the law and custom prevailing in that area, was granted by the then Ruler, his brother, H.H. :llaharaja P. K. Dcu a maintenance allowance of l~s. 1200 per month. After the merger of the State in the State of Orissa and on the recommendation of Shri Rege, I.C.S., a maintenance allowance of Rs. !000 per month was fixed for the petitioner in consultation with the Government of India. As a result of the statement made by the then Chief Minister of Orissa, dated June 28,1957, quoted above, the petitioners havo been deprived of their juRt claims to maintenance in accordance with the law. The petitioners' memo· rials to the State Government and to the authorities of the Central Government have produced no results; hence the Writ Petition against the stopping of the payment of allowances to the petitioners with effect from July 1, 195i.

In support of these petitions, three separate arguments have been addressed to us, and have covered a very wide field. Shri Viswanatha Sastri appeared in support of petition No. i9 of 1957; 8hri in support of Purshottam Trikamdass appeared

.. .......

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I

(1) S.C.R. SUPREME COURT REPORTS

419

1961

.

SillhaC.J.

pPtition No. 167 of 1958 and No. 4 of 1959, and Shri N. C. Chatterjee appeared in support of the Promod Chandra Deb petition No. 168 of 1958. Though the arguments TiuSta:~JOrissa have been overlapping and not always consistent, the points urged on behalf of the petitioners m eRch case may be summarised as follows. The grants made by the Rulers in eaeh case were in respect of the .khorposh rights of the membt;rs of their family, which the Rulers, under the law both statutory and customary, reco~nised as the rights of the junior members of the family which is governed by the rule of Lineal Primogeniture. Generally the grants took the shape of landed property but very often the usufruct of the property was taken over by the State in lieu of a cash allowance. Whether the Khorposk grant took the form of land or of money, it was made by a sovereign Ruler. Every act of the Ruler, whether executive, legislative or judicial in character, with reference to modern democratic ideas of separation of power, has the force of law. In the hands of the Ruler for the time being, these distinctions did not hold good. Whatever they said or did in refotion to the affairs of the State was law for the time being, which the Ruler could abrogate or modify according to his absolute power. But after the disappearance of the Rulers' sovereign powers, the succeeding power, whether it was the Government of India or the Province, and later the State of Orissa, was not competent to abrogate the orders granting main- tenance to the junior members of the family, accor- ding to the law of the land, without recourse to legis- lation by a competent body. In this connection reliance was pla~ed on the decisions in the case of Director of Endowments, Government of Hyderabai!. v. ) and Madhaorao PhaZke v. The State of Akram Ali (1 Madhya Bharat('). Hence the Government of India had to get the Parliament to make the ne<.'essary legislation, if it intended to do away with the rights

(I) A. I. R. ( 1956) S. C. 60

(2)

[1961] ls. c. It. 957.

1961

Promo/ c.i...lta l>t& ••

Tlw S1.u of Orl11a

Sinha C. J.

.(20 SUPREME COlIBT REPORTS [1962] SUPP.

to KhorpoBh created by the previous Rulers of the States concerned. It was also contended that there was no entry either in List I or in Li.st III, of the Constitution, which could authorise the Central Legislature to make a l&w abrogating those grants. It was further contended that in respect of some of tho grants at least, tho Government of India had recognised the rights of the grantees and had been making payments through the State of Orrisa, in pursuance of those recognised rights. In the case of the petitioners in Writ Petition 168 of 1958 and 4 of 1959, it was further argued that the payments had been made to. the grantees until June 1957. It was only in July, 1957, that the payments were stopped arbitrarily as a result of the statement made by the Chief Minister of Orissa, as statml a hove.

The learned Solicitor General, who appeared on behalf of the respondents, first raised a preliminary objection in respect of the first case (Writ Petition 79 of 1957) relating to the grant by the Ruler of Talcher. His contention was that it was the admit· ted case of the parties that the payment to the petitioner was stopped in April, 1949, and the peti tioner was informed by the Government's order <lated June 22, 1949 that the Government's decision to stop the payment was final and could not be reconsidered. That being so, the rights guaranteed by the Constitution could not be founderl upon, in respect of a cause of action which arose before the Constitution. In the second case, namely Writ Petition 167 of 19()8, the right, if any, haa been abrogated by the Government's Notification dated June 8, 1949, hence in this case also the preliminary objootion, if it has any force, applies. Tho other argu- ments,of the Solicitor General, which apply to all the cases, were to the effect that the grant, if any, was not grant of land but of money, and, therefore, was not a grant properly so called; that there may

-

)II

~ i •

1961

Promod Chandra Deb v. The Slotf of Orisso_.

Sinha C. J,

(1) S.C.R.

SUPREME COURT REPORTS

421

that

have been a law relating to the making of Klwrposh grants to junior members of the family of the Rulers governed by the Rule of Lineal Primogeni ture, but the act of making ea.ch individual grant could not properly be characterised, as enacting a Jaw; it could, at best, be an order in exercise of the powers of the Ruler giving effect to the law in ques tion. Alternatively, it was argued that whether or nqf, the making of a grant was enacting a law, and whatever its nature, it could be abrogated by the succeeding sovereign power, without recourse to legislation. It was further argued that the matter in controversy would be governed by the provisions of the Extra Provincial Jurisdiction Act (XLVII of 1947), which came into effect on December 24, 1947. Reliance was placed upon s. 3 of the Act which lays down it "shall be lawful for the Central Government to exercise extra provincial jurisdiction in such manner as it thinks fit". It was pointed out that under sub. s.(2) of s. 3 of the Act, the Central Government had been authorised to delegate its jurisdiction, and this power the Government exerci sed in favour of the Provincial Government of Orissa. The terms of s. 4(1) to the effect that the Central Government may make such order as may seem to it expedient for the effective t>xercise of its jurisdiction under the Act, were also relied upon as the source of the authority for cancell ing the Khorposh allowance in favour of the petitioners made by the ex- Rulers. It was further contended that s. 5 of the Act validated the impugned orders of the Government, and whether or not they were thay "shall be valid as if they had been done according to the local lastly, law then in force in it was urged that, in any view of the matter, the orders impugned by the petitioners in these cases were acts of State, the legality of which could not be canvassed in a Municipal Court.

that area". And

legal,

•

1961

Pr.,... Chandra Deb

v. Tht St.t~ <'f Ori Ho

su.1 .. c. J.

I

)-•

422 SUPREME COURT REPORTS (1962) SUPP.

Before dealing with the arguments on the merits of the controversy, it is convenient first to deal with the preliminary objection raised with reference to the first two petitions, on behalf of to the effect that the or<lers the respondents, pa.Siied before the coming into em~ct of the Constitu tion could not be challenged in a writ petition because no \\Tit could be iSBue<l in respect of orders p888ed before the Constitution came into force. If the grants were in the shape of land, and if the Government bad deprived the petitioners of those lands, it could have been argued with a good deal of force that the disposseSBion from the lands took place at a time when the Constitution was not in force. But it appears that in these cases the grants ultimately aSBumed the shape of money allowances payable at regular intervals. They were to be paid periodically. Hence, every periodic deprivation the petitioners of the money allowance would give a right to approach this Court for relief. It appears from the pleadings of the parties that the petiti oners entered into prolonged correspondence insist ing upon their righta under the grants by the former Rulers and trying to impress upon the Government the justnellll of their demands. It was only in 1957 that the petitioners realised that they had no hopes of any revision by the Government of the policy which they had adopted of cancelling those grants. In our opinion, therefore, the preliminary objection has to be overruled.

In order to determine the controverAy on its merits, it is necessary to trace the history of the relationship between the Rulers and the Government of India before the territories concerned became a pa.rt of the territory of India. During the British regime, the Rulers of the Indian States (then called native States) enjoyed certain amount of sovereign powers, which were not uniform. The extent of their sovereignty under the suzerainty or the

(lJS.C.R.

SUPREME COURT HEPOI~TS 423

paramount authority of the British Government depended upon the several agreements between them. ThP position is thus described in the White Paper on Indian States (page 32, para 71 }:

19•1

Pum1od Cluaulra Deb v. Tht State of Orissa

Sinha C. J.

the

"Till

lapse of Pararuountcy,

the Crown as represented by and opera Ung through the Political authorities provided the nexus between the Indian S tatcs and the Central and Provincial Governments. The pivot of this arrangement was the Viceroy, who as Crown Representative to the Indian States the suzeraintv uf the British Crown while at the same time he was, in relation to British India, the head of the Government as Governor-General. '.1'110 Indian Independence Act, 1947, rcleasc'd the States from all their obligations to the Crown".

represented

After the coming into effect of the Indian Indepen dence Act and the establishment of the Indian Dominion, as a result of negotiation between the Dominion of India and the Indian States, certain steps were taken towards the integration of those States with India. The first step was the accession of these States in accordance with the Instruments of Accession, which appear in Appendices VII and VIII at pages 165 to 173 of the White Paper. As a result of the accession, the three States with which we are now concerned-the States of '.l'alcher, Bamra and Kalaliantli-acceded to the Dominion of India "with the intent that the Governor-General of India the Dominion, Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of this Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the States ... such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India on the 15th day of August,

1'1r11u1ti Chandra Dei v. 'J11t Stale of Orisia

fiinha C. J.

1

424 SUPREME COURT ItEPORTS [1962) SUPP.

194 7". This accession did not affect the continu ance of tho sovereignty of the Rufors entering into the agreomcnt, save as provided by or under t.ho Instrument of Accession. It, however, provided that in respect of such matters as are specified in the Schedule annexed to tile Instrument, which may he compendiously described as "Defence, External Affairs and Communicaticms·•, the Dominion Legis lature may make laws which shall apply to the acceding States also. IL is not neCCll83.ry to notice the difference between the Instrument. of Accession as contained in Appendix VII and that cont.ained in Appendix VIII for the })Urposes of these cases. The second step was the signing of what has been termed "Standstill Agreement", the form of which appe.ars in Appendix IX at pages li3-74 of the White Puper. The acceding States signed ·this "Standstill Agreement" which provided for the continuance for the time being of a.II subsisting agreements and administrative arrangcmunts in matters of common concern hetwecn the States and the Dominion of India. The first phase of the process of integration of tho Indian States into the Indian Dominion was the acCCBBion of the States as a forosaid. The second phase followed the merger of these States into the Dominion of India as a result of the 'llierger Agreement', in terms appearing in Appen<lix XI at pages 178-179 of the In December 1947, White Paper. these States merged with the Dominion of India by virtue of the Agreement.a of Merger, whereby the States ceded "to tho Dominion Government full and exclusive authority, jurisdiction and powers for and in rela tion to the governa.noo of the States and agreed to transfer the administration of the State to the Dominion Government on the lat day of January 1948". As a result of the 'Merger Agreement' sign ed by the Rulers of these States on or after the 14th of December, 1947, lmt before the lat of January,

•Jn

(!) s.c.R. SUPREME COUR'r .REPORTS

425

Promod Chandra /!ch v. The State of Orisja

Sinha C. J,

l!J48, the Dominion of India was vested with sove reign autlJOrity aud the ex-Rulers were left only with their priv1ite property and their annual Privy Purne. As these States which merged with the Domiuion of India, as aforesaid, di<l not become part of the Province of Orissa until a much later <late, it became necessary to provide for the adminis tration of these States. Thus came into existence the Act, called the J<~xtra Provin0ial Jurisdiction Act (XLVII of 1947). The Act authorised the Central Government, by itself or through its delegate, to exercise extra provincial jurisdiction in respect of areas outside a Province, which were ~cquired by the Central Government by treaty, agreement, grant, usage, etc., as recited in the Preamble to tho Act. In pursuance of the powers given to the Central Government under s. 3(2) of this Act, the Central Government delegated its power to the Government of Orissa to administer the territories which had acceded, as aforesaid, including the three States with which we are now concerned. This state of affairs continued until the coming into effect of the States' Merger (Governors' Provinces) Order, 1949, which came into effect on the first of August, 1949. Section 3 of the Order provides that as from the appointed day, namely, August 1, 1949, the States in question shall be administered in ull respects as if they formed part of the Province of Orissa. Section 4 provides that all laws in force in a merged State before that day, including Orders made under s. 3 or s. 4 of the Extra Provincial Jurisdiction Act, 1947, shall continue in force until repealed, modified or amended by a· competent legislature or other competent authority. ·Hence, any orders passed by the Central Government or its the Government of Orissa; under Act delegate, XLVII of 1947, shall have the effect of law, ·even though until the lat of August, J 949, theae States did not form part of the Province of Orissa. It

fl>6/

p11,m1,c/ f 'ham)ro De/1 v. 'flit Stnlr <!,/ 01iHa

1

426 SUPRKME COURT REl'ORT8 (l!J62] SlJl'I'.

will,' thus, appear that the sovereignty, whatever it was, of the Ru )era of the States in question ocas ecl on the execution of the Merger Agreement on or after the 14t.It of D<'cemb<'r, l!J47, and before the 1st of Janu.iry, 1948. Thereafter, on the 1st of January, 1!148, those States vested in the Central Government. The question, therefore, arises: Ho\\' far the Central Government or its delegate, the Government of Orissa, until the morger of the territories in the Province of OriBsa, as afure1111id, were bound by the laws pre vailing in those Statp;; during the regime of the Hulers, who had gone out.

the Hovcrcignty in

It ha.8 hccn strenuously argued on behalf of the respondents that the acts wmplained of by the petitioners were actH of State, into the legality of which t.he ;)fonieipal Courts had no jurisdiction to examine. The yucstion of the nature and effect of what are characterised as acts of State hn.s hcen discussed in a number of CIU:les, which went up to the Privy Council, and later in cases whfoh came In the case of the Secretary of up to this Court. State of India v. Kamachee B01Je Saltaba ('), their Lordships of the Privy Council stated the law in these terms :

than

'"The trani;actions of independent Statt·s between each other are governed by other laws those whieh Municipal Courts administer; suoh Courts have neither the means of deciding what is right., nor the power of enforcing any decision which they may make".

In that case, the Raja of 'l'anjore, an indcpcn<leut sovereign Chief, who, by virtue of Treaties, was under the protection of the East India Company, died without leaving male isaue. Thereupon the East India Company, in exercise of their sovereign

(II (1859) 7 M. I. A. 47G.

..

1961

Promod Cltandra Dei v. The State of Orissa

Sinha C. J.

(1) S.C.R. SUPREME OOURT REPORTS

427

power, seized the Raj of Tanjore on the ground that the dignity of the Raj was at Stake for want of male heir. It was held by the Privy Council that as the seizure was made by the British Govern ment, acting as a sovereign power, through its delegate the East India. Company, it was an act of State, and that, therefore, a Municipal Court had no jurisdiction to enquire into the property or legality of the transaction. In the course of the judgment, Lord Kingsdown further observed "that acts <lone in the execution of these sovereign powers were not subject to the control of the Municipal Courts, either of India or Great Britain, was sufficiently established by the cases of the Nabob of Arcot v. The East India Company, in the Court of Chancery, in the year 1793; and The East India Company v. Syed Ally, before the Privy Council in 1827". In that case, au argument was advanced before the Privy Council, that the seizuro of the Raj might be justified as an act of State, but the seizure of the private property of the Raja was not so justifiable. In dealing with that argument, their Lordships of the Privy Council made the following very signi ficant observations:

"But then, it is contended, that there is a distinction between the public . and private property of a Hindoo Sovereign, and that although during his life, if he be an absolute Monarch, he may dispose of all a.like, yet on his death some portions of his property, term ed his private property, will go to one set of heirs, and the Raj with that portion of the property which is called public, will go to the succeeding Rajah.

It is very probable that this may be so; the general rule of Hindoo inheritance is parti bility, the succession of one heir, as in the case of a Raj, is the exception. But assuming

,

19GJ

l'tcwiorl Chanrlra Dei v. ·rht St.att of OriJsa

Sitalta C. J.

428 SUPREME CUUR'l' REPORTS [1002] :)lJl'l'.

this, if the Company, in the exercise of their Sovereign power, have thought fit to 11CiZe the whole property of the latn Rajah, private as well as p11blic, does that circumstance give any jurisdiction over their ac•.s to the Court at .!\Iadras? If the Court cannot enquire into the acts at all because it is in act ofStak, how can it inquire into any part of it, or afford relief on the ground that the Sovereign power had been ~xercised t.o an extent which.Munici pal law will not sanction?".

This decision of the Privy Couneil was followed in the case of Cook v. Sir Jcm1CI; Gordon Sprigg('). That was a case in which the appellant claimed right to certain concessions relating to minerals, forest!!, trading and other rights, ete., in Ea.stem Pondoland, granted to them by the paramount chief of Pondoland. The suit was eucccssfu lly defended on the bround that the grant did not bind the Imperial or the Colonial British Government to recognise tho said concessions. The Lord Chancellor, delivering the judgment of the Judicial Committee, observed as follows, and almost adopted the langu age of Lord Kingsdown:

'"l'he taking possession by Her Majesty, whether by cession or by any other means by which sovereignty can be acquired, was an act of State and treating Sigcau as an independent Sovereign-which the appellants are compelled to do in deriving title from him. It is a well established principle of law that the transac tions of independent States between each other are governed by other laws than those which municipal courts adminiskr. It i1 no 1m11wer

to say that by tho ordinary principles of internatimial law pri\·ak property is resper·wd liy the sovereign which accepts the oession and assumeH the duties

(I) Ll899J A.C. ;72.

1961

Promcd Chandra Deb v. Tht Stale of 01issa

Sinha C. J.

(1) S.C.R1

SUPREM:E COURT REPORTS 429

and legal obligations of the former sovereign with reRpect to such private property within the ceded territory. All tlmt can be properly meant by such a proposition is that aceording to the well-understood rules of interm:tional law a chtmge of sovereignty by ceEsion ought not to affect private propert~, but no munici pal tribunal has authority to enforce sur•h an obligation." A similar question arose before their Lordships of the Privy Council in a case from India, reported as Secretary of State for Ind·ia "· Bai Rajbai('). In that case, the plaintiffs sued for a declaration of their rights to certain property and they questioned the orders of the Government of Bombay to the effect that they had no indefeasible rights in the property as claimed by them. The property was situate in the District of Ahmedahad, which was ceded by the Gaekwar to the British Government in the year 1817. The plaintiffs (respondents before the Privy Council) claimed the title to the property in the right of a grantee from the Mogul Emperors. While examining the question as to what was the precise relations in which the respondents stood to the Bombay Government at the time of cession of the territory, as aforesaid, and as to what were the legal rights enforceable in the tribunals of the new sovereign, their Lordships stat<'d the legal position as follows:

"The relation in which they stood to their native sovereigns before this cession, and the legal rights they enjoyed m1der them, are, save in one respect, entirely irrelevant matters. They could not carry in under the new regime the legal rights, if any, which they might have enjoyed under the old. The only legal enforceable rights they could have as against their new sovereign were those, and only those, which that new sovereign, by agreement

(I) (1915) L, R. 42 I, A, 229.

'

/36]

Prninod Chmtdra Dth v. Tlie St11te of Orint1 Sinha c·. J.

430 SUPREME OOURT REPORTS (1962] SUPP.

expressed or implied, or by legislation; chose to confer upon them. Of course this implied agreement might be proved by circumstantial evidence, such as the modo of dealing with them which the new sovereign adopted, his re cognition of their old rights, and express or implied election to respect them and bo hound by thi!m, and it is only for the purpose of de termining whether and to what extent the new sovereign has recognised thoHc anti-cession rights of the kasbat.is, and has p]ectcd or agreed to be hound by them, that the con~i­ deration of the existence, nature, or extent of these rights becomes a relevant subject for inquiry in this case. This principle is well established, though it scarcely seems to have been kept steadily in view in the lower Courts in the present case. It is only necessary to refer to two authoriti<·s •mt.he point, namely, the ea.se of Secretary of State for India '" Kamachee Boye Sahaba, decided in the year 18{i!l, :ind Cook \', Sprigg, dccirlNl in the yPar 1899."

Their Lordships also observed that iu deciding the question as to whether or not the new Government had recognised the prr.-existing rights and, if so, to what extent, the burden of proof rested upon those who ma<lc such claims.

In a later decision of the .Jnrlicial Committee of tho Privy Council in the ca.se of Vrijesing:ji in Jorarnrsinyji v. Secref<ir,11 of State fot rouuri/( '), the questionA as to the significance of 'act of State' and a~ to the rights of the inhahita1its of the territory a.frer it has been acquired by a new sovereign, whether by conquest, treaty or othenvi80 hnve been diecus.~ed by Lord Dunedin. In the course of his judgmr.nt, afk'r reforring to the previous

/11di<i

II) 11924\ L.R. 51 l.A. 357.

l'romod Chaudra Deb ,v. TheState ofOri·Ja

Sinha C. J.

(1) S.C.R. SUPREME COURT .REPORTS

431

authorities bearing on the questions, he made tP" foilowing observations, which put,in a nutshell tht entire legal position.

"But a summary of the matter is this: when a territory is acquired by a sovereign state for the first time that is an act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto un In all eases occupied by a recognised ruler. the result is the same. Any inhabitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under t.he rules of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the high contracting parties. This is made quite clear by Lora Atkinson when, citing the Pongoland case of Cook v. Sprigg he•says : "It was helcl that tJie annexation of territory made an act of state a~ that any obligation assured under the treaty with the ceding state either to the sovereign or the inclividuals is not one which municipal Courts are authorised to enforce."

In that case the Privy Council was called upon to determine the rights of the plaintiffs as Taluqdars in respect ofland in the Panch Ma.hals, which were in the domain of the Scindia. of Gwalior until December 12, 1860, when the Ruler ceded that territory to the British Government by a treaty. The paintiffs in that case clairned proprietary rights in the Taluqs, whereas the Secretary of State for India, who was

I

432 SUPRE:\IE COURT REPORTS [1962) ~UPP.

19Ul

Promod Chandra Deb v. 1k State of Orissa

Sinha C. J.

the contesting respondent; asserted that they "·ere ordinary lessees holding their lands at the·pl~asure of the Government. In that case it had been argued before the Judicial. Committe.e that. the plea of act of St.ate not having been specifically taken in tho . Courts.below, that plea should not have been given , .. effect to. This argument was met by their Lord~ ·ships 9f the. Privy Council by observing that no .such specific plea using the :words 'act of S.tate' was .necessary inasmuch as the plaintiffs. themselves had admitted in the plaint that. the territory had been ceded by the previous Ruler, the Scind.ia of Gwalior, ·to tho British Government ... The plaintiff- had the . onus CL]-st on them. of showing·: the acts of acknow ledgment of their. rights;, whicJ:. they claime(i, by the mew sovereign. Another argument raised on.behalf . of the pain tiffs was that· one of, the. terms of the treaty was that old rights. shall .. be recognised and that; therefore, their rights as proprietors still sub' sisted. On· this part, of. the case,: their Lordships ."observed that such a general; statement in. a procla mation only means this that the new. government ,,vm recoITTlise such rights as upon investigation by Hs .. officers it found thos.e rights, substantiated. The . new: Government had not . thereby renounced its :right to recognise only such' titles as it'considered fit and proper to recognise, and the Municipal Courts .were not thereby. empowcre~l to. investigate the .rights .claimed.. ,

· • '' · Where territory has been annexed to a new sove reign bJtreaty; conquest, cession or" otherwise, the position in law is clear. But where. there is no com ' plete; cessiori• of territory but' only the grant ofpov er mi.d jurisdiction wherepy !lovereign authority is vested in'another State, ther questfori has arisen whether the latter State h'as the.right to legislate on matters 'which are already governed by law promulgated by 'the State .in which the. territory still 'remains vested. '·That question was rairnd in' the' case of .- .. ~' _ .. >':

~ ..... · .· •.. _,·_. __ .. ~-

: .... ~ - ·--

--~ ··-

. --

·~--

c

(1) S.C.R.

SUPREME COURT REPORTS

433

1961

Promod Chandra Deb v. The State o/Oris1a

Sinha C. J.

Dnttatraya Krishna Rao Kane v. Secretary of State for India (1). The r,ase related to what is known as the Berar, now forming part of the State of Maharash tra. By the treaty of 1853, H. H. The Nizam of Hydra.bad had assigned to the British Government the districts collectively called the Berar, in lieu of certain expenses relating to the, army, etc. As a result of the arrangement, H. H.' the Nizam leased in perpetuity to the British Government that territory. The territory formed the subject matter of subsequent treaties in 1860 and 1920, whereby full sovereignty over the assigned J.istricts was re11,ffinn · ed in favour of the British Government. The British Government was to continue to have full aud ex clusive jurisdiction and authority over the assigned districts and the power to administer them as the British Government thought fit and proper. In pursuance of the Foreign Jurisdiction Act, 1890 (53 & 54 Viet. c. 57) an Order in Council was made in 1902 authorising the Governor-General of India in Council to deal with those territories, on behalf of His Majesty. In pursuance of that power, the im pugned law (The Berar Alienated Villages Tenancy Law, 1921) was enacted in 1921 it was held by their Lordsliips of the Judicial Committee repelling the appellant's contention that the enactment of 1921 was ultra vires that the Law of 1921, afore said, promnlgated by the Governor-General in Council, was a valid piece of legislation and was effective to interfere with pre-existing rights.

• i

The still later decision of their Lordships of the Judicial Committee in the case of Secretary of .Bt,ate v. Bardar Rust,am Khan (') is also very instruc tive in so far as it reviewed the older decisions and reiterated the law as summarised by Lord Dunedin in the decision just noticed in the case of Vajesingji Joravarsingji v. Becref,ary of State(•). In that case their Lordships had to consider the e:ffect of the Treaty of 1903 between the Khan of Kalat and the

(I)

(1930] L.R. S1 I.A. 318.

(2)

(1941] L.R. 68 I.A. 109.

(3) (1924] L.R. SI I.A. 357.

l

1961

Promod Chandra DeO v. Tiu State ofOrissa

Sinha C. J. ·

434 SUPRE~IE COURT REPORTS_JI962} SUPP

Government of India whereby the former ceded in perpetuity to the la.tter, in consideration of the payment of an annual rent, a certain- territory. It was held that the transaction was, in fact, a per petual lease of the territory at a quit rent and that the territory itself did not become part of the British Dominions, _ though the Khan of Ka.lat had made over the whole of his ·sovereign rights. In this case,· their Lordships had also •to consider the effect. of the provisions of the Foreign Jurisdiction Act, 1890 · ( 53 & 54 Viet. c. 37). Their Lordships held that by virtue of the Treaty ·and the provisions of the Foreign Jurisdiction Act, the Government of India had acquired full sovereign rights and had, there fore, the right to recognise or not to recognise exis ting titles to land, thus completely ousting the jurifi the Municipal · Courts to investigate diction of and to pronounce upon claims to those rights.

The decisiOns referred to above. have been noticed with approval by this Court in the cases of Thakur Amar Singhji v. State of Raja8than (1 ), Jlfs. Dalmia Dadri Cement Co. v. The Commissioner of Income-tax ('), The State of Saurashtra v. _J1Iemon Haji Ismail Haji (3 ) and in Jagannath .-Agarwala v. State of Orissa (')·

·

On an examination of the authorities-discu~sed the following propositions or referred to above, (1) ·•Act of State' is the taking over of emerge. sovereign powers by a State in respect of territory which. was not till then a part of its territory, either by . conquest,. treaty or cession, or otherwise, and may be.said to have taken place on a particular date, if there is a proclamation or other public dec laration of such taking over. (2) _But. the taking over. full sovereign . powers may be spread over a _number_ of years, as a result of a historical process.· (3) Sovereign power, including the.right to legislate·

(I) [1955] 2 S. C.R. 303, 335, 336. (3) [1960] 1 S. C.R. 53 7.

(2) [1959] S. C. R; 729, 739,-744. (4) [1962J 1 S. C.R. 205.

•

(1) S.C.R. SUPREME COURT REPORTS

435

1161

the

(4) Where

in Council

for that territory and to administer it, may be acquired without the territory itself merging in the Promod Chandra D1b new State, as illustrated in the case of Dattatraya Thi 81.~;oJOrissa Ki·ishna Rao Kane v. Secretary of State for Sinha C,J, India ('). terri tory has not become a part of the State the necessary authority to legislate in respect of that territory may be obtained by a legislation of the nature of Foreign Jurisdiction Act. (5) As an act of State derives its authority not from a muni- cipal law but from ultra-legal or supra-legal means, Municipal Courts have no power to examine the propriety or legality of an act which comes within the ambit of 'act of State'. (6) Whether the act of State has reference to public rights or to private rights, the result is the same, namely, that it is beyond the jurisdiction of Municipal Courts to in- vestigate the rights and wrongs of the transaction and to pronounce upon them and, that, therefore, such a Court cannot enforce its decisions, if any. It may be that the presumption is that the pre-exis- ting laws of the newly acquired territory continue, and that according to ordinary principles of Inter- national Law private property of the citizens is respected by the new sovereign, but Municipal Courts have no jurisdiction to enforce such inter- national obligations. (7) Similarly, by virtue of the treaty by which the new territory has been acquired it may have been stipulated that the pre-cession rights of old inhabitants shall be respected, but such stipulations cannot be enforced by individual citizens because they are no parties to those stipula- tions. (8) The Municipal Courts recognised by the new sovereign have the power and the jurisdiction to investigate and aocertain only such rights as the new sovereign has chosen to recognise or acknow- ledge by legislation, agreement or otherwise. (9) Such an agreement or recognition may be either ex- press or may be implied from circumstances and

(I)

(1930) L. R. 57 I. A. 318.

• •

IDOI

Promod Clumdra D1b v. Tht Stalt of OriJJa

Sinha C. J.

436 SUPREME COURT REPORTS [1962) SUPP.

of

the

the

right

in que~tion,

ri!rhts

against

claimed

evidence ttppearing from the mode of dealing with those rights by the new sovereign. Hence, the Municipal Courts have the jurisdiction to find out whether the new SO\'ereign has or hns not recognis ed or acknowlerlged implication, as afore either expressly or by (10) In any controversy as to the exis Raid. tence the new sovereign, the burden of proof lies on the clai mant to establish that the new sovereign had re rognised or ncknowledgecl the right in question. Applying those principles to each of the rnses in hand, the position appears to he as follows. In Writ Petition 79. of 1957, the Ta.lcher Sta.te morgen in the territory of India with effect from January, 1, IH48. Whatever rights the ex.Ruler of Talcher ma.y have conferred upon the petitioner, those rights could be enforced against the respondents only in so far a.s they have been recognised or ack nowledged by the new sovereign, tho Government of India, the question therefore arises whether the rights claimed by the petitioner in this case had the Government of India been It has already by been observed of Talcher the become part of the territory of India. certainly with effect from the first of January, 1948, as a result of the Merger Agreement, as a.foresa.id. There is also no doubt that the grant mado by the ruler of Talcher in favour of the petitioner continul"d to be effpctive until the lllerger. The nature and con ditions of such grant of Khorpo.sh arc governed by the provisions of the laws of that State as embo died in order 31 of the "Rules and Regulations of Talcher, 1937". Under the laws of Talchcr, the petitioner had been enjoying hiR [(horposh rights until the cash grant, as it became converted in 1943-44 as aforesaid, was stopped by the State of Oris~a, in April, 1949. On the first of January, 1948, subject of the

the petitioner her,ame a

legislat.ion or otherwise.

recognised by

i:itatc

that

1961

Promod Chandra Deb v. The SttJte of Orissa

Sinha C. J.

•

(1) S.C.R. SUPREME COUR'l' REPORTS

437

Dominion of India, on his territory merging in the territory of India. It has been argued on behalf of the petitioner by Shri Viswanatha Sastri that as from the 1st of January, 1948, on the merger, there was a complete change over of sovereignty and the Dominion of India got full and exclusive autho rity, jurisdiction and power in relation to the erst while territory of Talcher State; and that as soon as that happened, the Constitution Act of India then in force (Government.of India Act 1935 dS amended by the Indian Independence Act) became applicable to the inhabitants of Talcher also. That being so, they also became entitled to the benefit of s. 299(1) of the Constitution Act of 1935, which reads that "no person shall be deprived of his property save by authority of law". He relied upon the decision of the House of Lords in the case ofJohnstone v. Pedlar (1 ) in which the plaintiff's claim for damages brought by a friendly alien, resident in the United Kingdom against an officer of the Crown in respect of wrongful seizure and detention of his property was decreed. It was further held that the defendant's plea that the property had been detained by direction of the Crown as an act of State was not a good defence to the action. In that case Viscount Cave stated the proposition of law and his opinion on thB.t proposition in these words:-

"My Lords, counsel for

the appellant contended for the broad proposition that, where the personal property of an alien friend resident in this country is seized and detained by an officer of the Crown, and his act is adopted and ratified by the Crown as an act of State, the alien is without legal remedy. In my opinion this proposition cannot be sustained.

When a wrong has been done by the King's officer to a British subject, the person wronged has no legal remedy against the

(I) (1921) L.R. 2 A.C. 262.

438 SUPREME COURT REPORTS [1962) SUPP.

l;;

1961

Promod C..Mnbo Dth v, Tht Sl4tt of Orissa'

Si,\a C. J.

Sovereign, for 'the King can do no wrong'; but he may suo the King's officers for the tortious act, and the latter cannot plead the authority of the Sovereign, for "from the maxim that the King cannot do wrong it follows, ae a necessary consequence, that the King cannot authorize wrong".

ln the course of hie Judgment in that case Lord Atkinson made the following observations with reference to the decision of J..ord Halsbury in the case of Cook v. Sprigg(').

"The last words of Lord Halsbury's judg ment clearly suggest that the Government of this country cannot assert as a defenoe against one of their own subjects that an act done to the letter's injury was an act of State, since such a subject clearly could not rely on his own 1iovcreign bringing diplomatic pressure against himself to right the subject's wrong. In conformity with this principle it was held in Walker v. Baird ( (1892)A.C.491) thatwhero the plaintiffs are British subject in an action for trespass committed within British territory in time of peace it is no answer that th'l tre8- pasa wru1 an act of State, and that thereby the jurisidiction of the Municipal Courts was ousted".

Lord Sumner, in the course of his opinion, referred to the argument based upon the case of Bu1'0'1I v. Denman(') that the executive has, as against aliens, a general right to commit by ite agents what would be an actionable wrong in private persons. With reference to that argument, Lord Sumner made the following observations:

"My Lordi, the speculation is intereating but, as I think, fallacius. Buron v. Denman (2 Ex. 167) is a oase rather of the inability of the Court than of the disability of the suitor.

(I) [1899] A. C. 572.

(2) 2 &. 167,

I •

'

(1) S.C.R. SUPREME COURT REPORTS

439

Municipal Courts do not take it upon themsel ves to review the dealings of State with state or of Sovereign with Sovereign. They do not control the acts of a foreign State done within the execution of in it.~ own sovereign powers so as to criticise their legality or to require their jastification ... ".

territory,

1961

Promod Chandra Dei Y. Tiu State of Orissa

Sinha C. J.

Lord Phillimore, in the course of his opinion, while dealing with the defence set up by the official of the Crown, made the following observations:

"The defence set up in the present case is the defence of an act of sometimes called State. As regards this way of looking at it, I cannot put the matter better or more tersely than as I found it put in one of the reasons given by the successful plaintiffs in their case as respondents before the Privy Council in Walker v. Baird ( (1892) A.C. 491, 494): "Be cause between Her Majesty and one of her subjects there clln be no such thing as an act of State". And this proposition was finally accepted in the case of Walker v. Baird".

Lord Phillimore, after discussing a number of autho rities and the propositions laid down by them, concluded his opinion in these words : -

"]from these propositions it would seem to fo!lo:W that an. _alien ami complaining of a tort is m the pos1t1on of an ordinary subject, and that no more against him than against any other subject, can it be pleaded that the wrong complained of was, if a wrong, done by command of the King or was a so-called act of State."

Relying upon those observations, the learned counsel for the petitioner contended, in the first instance, that when the Government of India, or its delegate the Government of Orissa, deprived

19GI

l'rcmod aandra Deh V. Tiu St11te of Orisw

Sinha C. J.

4-10 SUPRI<JME OOURT REPORTS [1962) SUPP.

the petitioner of his allowance in 1949, as aforesaid, it infringed the constitutional guarantee contained in s. 299 (I) of the C'..onstitution Act of 1935, and that the reliance upon act of State by way of defence was not tenable because, it was further argued, the sovereign cannot exercise an act of State against his own subject. The argument is very plausible and attractive, but we need not pronounce upon it in view of our conclusion, as will presently appear, with rcforcnce to his alternative argument based upon recognition. The argument is that the inhabitant.s of a territory acquired by a new sovereign by conquest, cession or otherwise can make goo·l in the municipal courts such rights as have been recognised hy the new sovereign. In this connection, reliance was placed upon the provi sions of sub-para (b} of paragraph 4 of the Adminis tration of Orissa Staws Order, 1948 (which we shall for the sake of brevity call tho Order of 1948). It has to be recalled that on the lst of January 1948, the Government ofOrissa made the Order of 1948. This order was made by the Government of Orissa in exercise of tho powers conferred by s. 4 of the Extra Provincial Jurisdiction Act, 104 7, as a delegate of the Government of India. Paragraph 4 of the Order of 1948 reads as follows:-

"4. Laws to be applied-( a) The enact ments specified in the first column of the far as Schedule hereto annexed shall, so circumstances admit and subject to any amendments to which the enactments are for the the time being generally subject, territories to which they extend, apply to all Ori&!& States and any provision of any law in force,· whether substantive or procedural and whether based on custom and usage or statues, in any of tho Orissa States, whiGh is repugnant to any provision of any of the said enactmentij shall, to tho extent of tho

in

(I) S.C.R. SUPREME COURT REPORTS

441

1961

repugnancy, cease to effect from the date of p,.,,,od Chandra Deb commencement of this Order:

•· The Slate off?r;s;a

Si•ha C. J.

Provided that the further modifications and restrictions set forth in the said Schedule shall be made in the enactments applied :

Provided further that for. the purposes of facilitating the application of the said enactments any court having jurisdiction in the Orissa States may construe the pro· thereof and notifications, orders, visions rules, regulations, forms or bye-laws made or issued thereunder, with such alt.erations not affecting the substance as may be necessary or proper tp adopt them to the matter before the Court:

Provided further that in the enactments as so applied (except where the context or modifications hereinbefore referred to other wise require). reference to "British India" and "Central Government" shall be construed as references to "all the provinces of India and Orissa States" and "the Provincial Govern ment" respectively.

(b) As respects to those matters which are not covered by the enactments applied to the Orissa States under sub-paragaph (a), all laws in force in any of th& Orissa States prior to the commencement of this Order, whether substantive or procedural and whe· ther based on custom and usage of statutes, shall, subject to the provisions of this Order, continue to remain in force until altered or amended by an Order under the Extra-Pro vincial Jurisdiction Act, 1947 (XLVII of 1947).

Provided that the rowers that were exer cised by the Ruler o each such State under

l!M/

/1' mt1d C/landra Dtb v. The Staft oj Ori Ha

Si11l,a C. J.

.J.12 SUPREME COURT REPORTS [1962] SUPP.

any of those laws prior to the commencement of thiA Order shall be exercised by the Provin cial Government or any other officer specially empowered in this behalf by that Government. ExplAnation-In this sub.paragraph the expression "la.wa" includes rules, regulations, bye-laws and orders.

( c) As respects those matters regarding which the enactments applied under sub-para (a) or the laws continued in force graph inapplicable, (b) are under sub-para.graph civil. criminal and revenue jurisdiction in the Orissa States shall be exercised in accordance with tho principles of justice, equity and good . ~ ' cunscienec . Under sub-para (a) certain enactments speci· ficd in the first column of the Schedule annexed tu the Order of 1948 were applied to the Orissa States inch1ding Talchcr, subject to certain amendments not ma.wrial in this connection. The enactments so specified in the Schedule did not in any way affect the custom or the law under which the grant in favour of the petitioner ha.d been ma.de, and under sub-para. (b) the law of the State of Talcher, as con tained in the Regulations aforesaid 1937 continued in operation, subject, of course, tu the provisions of the order until altered or amended by an order under the Extra Provincial Jurisdiction Act, 194 7. It is contended on behalf of the petitioner that by virtue of the operation of sub-para.graph (b) of paragraph 4 of the Order of 1948, the new sovere ign recognised the legal right of the petitioner to receive hiB maintenance allowance under the grant by the previous Ruler of Talcher.

In this connection we may notico the 'lrgu mcnt advanced by the learned Solicitor-General on behalf of the respondents thl\t there waA no change over of de jure sovereignty on the I lit of J Mtuary, 1948, as contended on behalf of the petitioner, and

( l

1961

Promod r:handra D,;b v, The State oj Orissa

SinM C, J.

(I) S.C.R.

SUPREME COURT REPORTS

443

really

that such a change-over could not be deemed to have taken place until July 27, 1949, when, as a result of the promulgation of the Order known as the States' Merger (Governors' Provinces) Order, (Appendix XLIV, page 297 of the White 1949 Paper), the Orissa 'States, including Talcher, were int'3grated in the Province of Orissa. In our opinion there is 210 substance in this contention for the simple reason that the question is not whether or when Talcher ·became a part of the Provi11ce of Orissa, or subsequently of the State of Orissa, 011 the advent of the Constitution. The question in is on what date can the State of Talcher be said to have completely merged the Dominion of India within the meaning of s. 5 of the amended Government of India Act, 1935. Under that section, the Dominion of India com prised not only the Provinces, called "Governors' Provinces", or Chief Commissioners' Provinces, but also "the Indian States acceding to the Dominion of India in the manner hereinafter provided" (s.5(c)). We have already pointed out, while tracing the the people of the Indian relationship between States and the Dominion of India, and later the Union of India, that as a result of the Merger Agreements, referred to above, those States, in cluding the State of Taloher, completely merged in the Dominion of India on the l'st of January 1948.

But then it was argued by the learned Soli that, alternatively, assuming that citor-General Talcher bad become a part of the Dominion of India in Ja11uary, 1948, the grant made in favour of the petitioner was not a law, and was neither recognised nor continued in force by virtue of sub para. (b) of paragraph 4 of the Order of1948. It therefore, necessary to consider whether the is, grant in favour of the petitioner had itself the foroe of law in the State of Talcher. In our

l"GJ

..

Prornod (.J1nmf1u Dtb

TJ,, Staft oJOriH•

Sinha C. J.

..

44·1 SUPREME COURT REPORTS [1962] SIJPP.

,

'l'he State of

opinion, tho deci~ions of this Court, particularly (I) 'l'liakur Amar 8inghj-i v. State of Rajasthan ('): (2) Jf/s. Dalmia Dadri Cement Co., Ltd. v. The (') and 1lf adharao Commissioner of I ncome-'l'ax ,)fadh}J_" Bhamt (') fully Plialke v. support tho conclusion that whether the act of the former rulors in making tho grant partook of the character of legislative, or executive action, it had tho effect of law, and, secondly, that the rules contained in Order 31 of tho Rules and Regulations of the State of Talchcr, 193i, had the effect of law and had been continued in force, in the absence of any legislation to the contrary. The is particularly opposit-0 last mentioned case to the facts and circumstances of this ca8e. The Order 31 of tho Rules ar.d Regulatio11s aforesaid of the Sta to of l'alcher stand on tho Ramo footing as the Kalambandis which wore the subject matter of tl.ie decision in that case. The Rules and Regulations, even as the Kalambandis in that case, have the force of law and would be existing law within the meaning of Art. 327 of the Constitution. The provisions of sub.para. (b) of para. 4 of the Order of 1948, therefore, clearly applied and tho ltegulations of 1937 continued force. The explanation to the sub-paragraph (b) says in express terms that the expression "laws" includes rules, regulations, bye.Jaws and orders. In view of tho width of sub-para. (b) of paragraph 4, the conclusion is irre sistible that the new sovereign, by the legislative Order of 1948, had recognised the oustomary grant in favour of the Khorposkdhars of Talcber, including the petitioner. Of course, the recognition is subject to the reservations, namely, ( l) to the provisions of tho Order of Hl48, and ( 2) to any alterntion or amendment of the Order by any legislation under the Extra Provinoial Jurisdiction Act of 1947.

and amplitude of

tho provisions

in

(I)

,19!">5J 2 S. C.R. 30J.J35, 336. (3J

[!961] IS. C.R. 957.

t2J

[1959] S.C.R. 1'l9, 739, 744.

1961

Promod Chandra Deb •• Tlr.e State of Orissa

Sinha C J,

(I} S.C.R.

SUPREME COURT REPORTS

445

In this connection, we may here notice the further argument advanced by the learned Solicitor General tba.t even if the petitioner were entitled to take advantage of the provisions of sub-para. (b} of paragraph 4 of the Order of 19!8, the impugned order stopping th~ grant could be supported with reference to the provisions of ss. 3 (l) and (5) of the Extra Provincial Jurisdiction Act of 1947. Section 3(1:') is in general terms and provides that "it shall be lawful for the Central Government to exercise extra provincial jurisdiction in such manner as it thinks fit". This provision, which is in general terms, authorises the Central Government to exer cise extra provincial jurisdiction iu suoh manner as it thinks fit, which means, in accordance with the subsequent provisions of the Act,. or orders passed under the provisions of the Act. Those sections, ss. 3(1) and 4, have to be read harmoniously so as not to make the provisions of s. 4 nugatory. Sub section (2) of s. 4 enables the Central Government to make any "order" in respect of matters specified in els. (a), (b), (c) and (d) therein ; and where an "order" has already been ma.de by a competent author-ity under s. 4 of the Act, that order can be superseded only by another valid order under that very section. Section 3( l) cannot, therefore, be construed so as to override the provisions of s. 4.

With reference to the provisions of s. 5 of the

Act, which reads,

"Every a.ct and thing done whether before or after the commencement of this Act, in pursuance of any extra provincial jurisdiction of the Central Government in an area outside the Provinces shall be as valid as if it had been done according to the local law then in force in that area",

it has to be enacted with a view

remembered that

to arming

the Act was the Central

llMl

Promotl r:hitnd1a D16 v. The State ofOrissa

Sinha C. J.

446. SUPREME OOURT REPORTS [1962) SUPP.

In order,

Government with powers to make provision for the administration of such areas a.a came into the Domi· nion of Ind in as a result of the. process of integration as discusser! n.bove, and which areas were not within the ambit of any Governors' or Chief Commissioners' Provinces. therefore, to fill the legal vacuum for the time being, the Act was passed to rrgularise every act and thing done even l>E-fore the enactment, as if it had been done according to the local law then in force in that area. Anything could be done in such a local area according to the laws of that area by authorities empowered to do so, but the functionaries of the Government of India or of its delegate, would have no jurisdiction so to function except by virtue of the provision• of s. 5. The section, thuR, clothed such functionaries with legal authority in reRpe!"t of an act or thing done, which otll!'rwise would have been illegal. llut this section cannot be construed 80 as to mean that those functionaries had been empowered to abrogate the Jaws which had been continued in force by vir· tue of s. 4 of the Act, or by virtue of an order made in accordance with the provisions of s. 4 of the Act. In other words, s. 5 cannot be read so as, to make the provisions of s. 4, or of orders passed under that section, otiose. All the sections of the Act have tu ho read, it muet be repeated, in a harmo nious way so as to give full elfeC"t to each one of the It must, therefore, be held provisions oC the Act. that 8. 5 did not authorise the functionarira of the Government of India., or of its delegate, to infringe the Jaws which had been continued in force by virtue of s. 4, using the word "l11wa" iu their most comprehensive sense, in accordance with the provi sions of the Act itself. As a result of these considera tions, it must be held that the respondents have no justification for stopping the grant. The applica tion must, therefore, be allowed, ancl a writ issued diroctin~ tho Government to continue the 11,llowance

1961

Prom1d Chandra Deb v. The StateofOriss• Sinha c. J,

(1) S.C.R. SUPREME COURT REPORTS

447

as from the date on which it was withheld. The petitioner is entitled to his costs.

it must be held,

In the second case

in terms made under s. 4 of

(Writ Petition 167 of 1958), in accordance with the decision in the case just decided, that the peti. tioner had the right claimed by him. But this case is met by the Order dated June 8, 1949, which was the Extra Provincial Jurisdiction Act of 1947. Such an order has the effect of law and was not a mere executive fiat, as contended on behalf of the petitioner. By an order made under the provisions of the Act aforesaid, the Central Government cltJarly indi- cated itS intention of annulling the grant. The Order passed under the Act has , in terms been characterised M of a legislative character; hence it has the effect of abrogating the grant so far as the petitioner was concerned. Whether that order of annulment was proper or improper, just or un- just, is not a matter which this Court can investi- gate and pronounce upon. It has not been con- tended before us that the order annulling the grant was ultra vires the provisions of the Act, and, therefore, of no effect. It must, therefore, be held that the rights claimed by the petitioner in this case have been validly terminated by the respon. dents. This application must, therefore, be dismis- sed, but, in the circumstances, without costs.

168 In the third case (Writ Petition No. of 1958) in which the petitioner is the same as in the second case , the position is different, because by the order dated June 11, 1949, the Government recognised the right to a maintenance at Rs. 800 per month, in modification of the previous grant. Not only was this grant recognised, but the right thus recognised was given effect to, because it is that payment continued to be common ground made till July l, 1957. The payment was stopped

]961

Pron1od Chandra Deb ••

The Stalt of Orissa

Shiha C .. 1.

448 SUPREME COURT REPORTS [1962] SUPP.

only as a• r.esult of the statement made by the Chief Minister in the Legislative Assembly on June 29, 1957. As the right claimed in this case had been recognised by the Government, and imple mented, it could not be stopped by a mere' fiat of is tho Govo;rnment. The petitioner, entitled to. the declaration that llis right is intact and to a \vrit of mandamus to the respondent to carry out its obligatiops.

therefore,

,

In the fourth· case (Writ Petition 4 of 1959), the position is the same as in .the third ease, just In this ease also, the petitioners' disposed of. rights were recognised in respects of maintenance allowance of Rs. 1200 per- mensem the first petitioner and reduced maintenance', the allowance of !ts. 1000 per mensem for the second petitioner. These allowance.a. continued to be paid until thoy were stoppea as a result.of the statement aforesaid. '.I'he· petitioners,· therefore, are entitled to the same rylitif.as, in·the previous 'Case (Writ I'eti tion 168 of 1958). ThC'-pet_itionom in Writ Petition Hi& of 1958 and Writ Petition 4.o£ 1959,are entitled to their costa.

for

.·

Mudho/kar J.

Mi:rDHOr.tG\R, .J.-We apee. We c'ou1d, how

ev;er, like to add a few words. In "the: cq'ursc of his argument Mr. Viswa.na.tha 'Sastri stated that since the Talcher State was merged in the Dominion of India 'on January ·1, 1948, there was complete change over pf sovereignty, that ~s ·from that date the residents thereof became. entitled to the benefit of s. 299 (1) of the C<;>n&ti~ution Act, .1935, that the Act of the Orissa ·Governll'.!~nt ip..iiepriving the petitiol}er in W.P, 79 .Qf J957 of qis maintenance grn.nt in the year 1949 was_ in violation.pf that provjsion aµd ·tha,t c9nsequeHtly th!!· Order Illa.de in that behalf was unconstitutional. He also contended that the actio~.ofthe Qri.F.sa ~!JVernmcnt coulQnot be regarded as ~n aot of State b\)eause tP,{lre ean be

(1) s.c.R. SUPREME COURT REPORTS

449

no act of state by sovereign against his own subject. Referring to this argument My Lord the- Chief Justice in his judgment has observed: "The argu· ment is very plausible and attractive, but we need not pronounce upon it in view of our conclusion, as will presently appear, with reference to his alternative argument based upon recognition." The learned Chief Justice went on to deal with the alternative argument advanced by Mr. Viswanatha Sastri and accepted it.

11111

""-~ CMoo!m .11# TltaBkl<o/Grim

.•.

MllilMl1w .J.

While we agreee with the conclusions reached by My Lord the Chief Justice on the alternative argument of Mr. Viswanatha Sastri and also agree with. what My Lord has said with regard to the other writ petitions, we would like to state our view on the first point urged by Mr. Viswanatha Sastri. In our opinion s. 299( l) of the Constitutfon Act of 1935 did not help grantees from the former rules whose rights had not been recognized by his new sovereign in the matter of establishing their rights in the municipal courts of the new sovereign because that provision only protected such rights as the new citizen had at the moment of his be It did coming a citizen -or'the Indian Dominion. not enlarge his rights nor did it cure any infirmity in the rights of that citizen: This is the view which we have taken in our judgme11t in State of Gujarat In that case the v. Jamadar Mahomed Abdulla ('). rights of the grantees from the former ruler of Juna. gadh were 11ot recognised at any time by tho Dominion of fodia and so we held that even after they becoming citize11s of the Indian Dominion could not assert those rights in the municipal courts of the Dominion of India. We adhere to that view and reject the first argument of Mr. Viswanatha Sastri. Since we agree with the rest

(I) [i962]3S.C.R.970.

•

U6I

l'r""'uil Chandra Dt6 v. Tiu Sui. o/Orissa

M udllollau J.

450 SUPREME COURT REPORTS [1962) SUPP.

of the judgment there is nothing more need say.

that we

Petitions 79 of 1957 168 of 1958 arnl 4 of 1959 allowed. Petition 167 of 1958 dismissed.

1961

Nofltmbtr 16.

MANOHAR LAL CHOPRA t•. RAT BAHADUR RAO RAJA SETH HIRALAL (K. N. WANCHOO, K. c. DAS GUPTA, .T. c. SHA!( and RAOHUBAR DAYAL, JJ.)

Civil Procedure-Inherenl pou'<rB nf courl .. -Temporary Injunction-Restraining parly from procuding with •uit in anothar State-l.egality and propriety of-Code of Cid/ Proce dure, 1908 (V of 1908), ss. 94(c) 151 : 0. 39 r. 1.

In the Asansol suit one of

to the Calcutta High Court against

M filed a suit at Asansol against H for recovery of money. Later, H filed a counter suit at Indore againtst M for recovery of money. the defences rai•ed by H was that the A.ansol court had no jurisdiction to entertain the suit. H applied to the Asansol court to stay the suit but the court refused the prayer. An the refusal to appeal the direction that the preliminary stay was dismissed with issue of juri•diction should be disposed of by the trial court immediately. Thereupon, H applied to the Indore court for an injunction to ttstrain M from proceeding with the Asansol suit pending the disposal of the Indore suit and the court purporting to act under 0. 39 Code of Civil Proce dure granted 1 he injunction. M appealed to the Madhya Bharat High Court which dismissed the appeal holding that though 0. 39 was not applicable to the case the 01 der of injunction could be made undrr the inhrrent powers of the court under s. 151 Code of Civil Procedure.

Held,

that the order of injunction was wrongly granted

and should be vacated.

Per, Wanchoo, Das Gupta, and Dayal,.D.-The Civil courts had inherent power to issue temporary injunctions in cases which were not covered by the provisions of 0. 39 Civil Procedure Code. The provisions of the Code wrre not

I